FEC Should Preserve ‘Breathing Space’ for Online Political Debate

CDT joined the Electronic Frontier Foundation last week in comments urging the Federal Election Commission to leave in place a key policy decision protecting individuals’ ability to engage in political speech online. Since 2006, the FEC has formally taken a narrow, hands-off approach to applying campaign finance regulations to online political expression, recognizing that the Internet provides millions of people a platform to seek information and express their opinions about political topics – and political candidates.

In 2005, when the FEC launched its first inquiry into the topic, CDT and a coalition of civil liberties organizations, bloggers, and other individuals developed a set of principles for thinking through the consequences of applying campaign finance regulations to online speech. We advocated for “breathing space” for online political speech, warning that the complex welter of campaign finance regulations would discourage individuals from engaging in robust online debate about political candidates and policy proposals. In contrast to the traditional media landscape, where only a few elites have access to mass communication channels to put forward their views, the Internet provides an open, accessible platform for millions of speakers in the US. Few of these speakers would imagine that their posts or comments could bring them under the FEC’s scrutiny. As we argued in 2005, “[o]rdinary people should be able to engage broadly in volunteer and independent political activity without running afoul of the law or requiring consultation with counsel.”

In the past decade, millions more individuals in the US – and billions around the world – have begun to use the Internet as a key platform for political discourse. In 2014, Pew Research Center found that 16% of registered voters followed a candidate or other political figure on social media, and nearly 30% followed election-related news online using their mobile phones. Just last night, 2.6 million tweets were sent during the President’s State of the Union address. The FEC’s hands-off approach has supported the development of this dynamic sphere of public debate; it should ensure that its regulatory approach continues to promote – not discourage – political participation online.